This copy is for your personal non-commercial use only. To order
presentation-ready copies of Toronto Star content for distribution
to colleagues, clients or customers, or inquire about
permissions/licensing, please go to: www.TorontoStarReprints.com

OTTAWA— The promise of privacy to encourage abuse victims to tell their story overrides the government’s wish to preserve for future generations individual records of the horrors of the Indian residential school system, the country’s top court ruled Friday.

The decisive 7-0 ruling by the Supreme Court of Canada gives former residential school students a 15-year period to decide if they wish their stories preserved, but it leaves that decision in their hands instead of the government’s archivists.

Assembly of First Nations National Chief Perry Bellegarde called it a “good and fair decision” that respects the rights of former residential school students, but Carolyn Bennett, minister of Crown-Indigenous Relations and Northern Affairs, said she was “very disappointed” because scholarly work aimed at “analysis of the system in the churches and in government has not yet been done.”

“That’s why the centre for truth and reconciliation wanted access to the documents,” said Bennett. “It is the reason the Government of Canada did want those documents preserved.”

But the court said the ability to control their own story was a key part of the deal the Canadian government struck with former students in 2008 to settle a massive class action lawsuit over the devastating legacy of the residential schools.

That settlement agreement included an out-of-court process for assessing individual abuse claims which elicited personal accounts of “abuse ranging from the monstrous to the humiliating, and of harms ranging from the devastating to the debilitating,” wrote Justices Russell Brown and Malcolm Rowe.

In confidential hearings, former students related tales of physical, emotional and sexual abuse at the hands of school staff, supervisors, and in 35 per cent of the cases, former fellow students, said Dan Shapiro, the chief adjudicator of the independent claims process.

Shapiro welcomed the ruling Friday and said it means the explicit promise Canada made to survivors will be kept: that “their most intimate and painful memories would not be shared outside of the hearing without their consent” and would be kept secret “even from their families and even after their death.”

If survivors do choose to preserve the records, however, the names of perpetrators will be redacted, he said.

The high court said the testimony of former students disclosed assaults ranging from occasional incidents of fondling and unwanted kissing up to repeated rape, abortions, and the lifelong fallout: suicidal tendencies, substance abuse and psychological disorders.

Archiving their stories would mean “highly sensitive and private experiences would be conscripted to serve the cause of public education. But this is plainly not what the parties bargained for,” said the court.

It doesn’t mean there is no documentary record of a dark chapter in Canada’s relationship with Indigenous peoples.

Statements collected from more than 6,000 individuals by the now-defunct Truth and Reconciliation Commission remain preserved in the National Centre for Truth and Reconciliation in Winnipeg. It documented how residential schools, funded by the federal government and operated by religious groups from the 1860s to the 1990s, attempted to culturally assimilate more than 150,000 First Nations, Inuit and Métis children.

Victims and perpetrators who participated in the individual claims assessment process were guaranteed their accounts would remain “highly confidential,” the high court said, and “confidentiality was also crucial to the participation of the church defendants.”

It is “excruciatingly clear,” the court said, that disclosure could be “devastating” to claimants, witnesses, and families” and “could result in deep discord within the communities whose histories are intertwined with that of the residential schools system.”

Get more of what matters in your inbox

Start your morning with everything you need to know, and nothing you don't. Sign up for First Up, the Star's new daily email newsletter.

The judges dismissed Ottawa’s argument that privacy could be protected if records were transferred to the Library and Archives Canada or the National Centre, even if redacted. The ruling said such a transfer to a public institution breaches the promise of “strict confidentiality.”

The ruling upheld a supervising judge and an Ontario Court of Appeal’s conclusion that federal laws on the preservation of records were never expressly part of the deal, and couldn’t be assumed to apply after the fact.

More from The Star & Partners

More News

Top Stories

Copyright owned or licensed by Toronto Star Newspapers Limited. All
rights reserved. Republication or distribution of this content is
expressly prohibited without the prior written consent of Toronto
Star Newspapers Limited and/or its licensors. To order copies of
Toronto Star articles, please go to: www.TorontoStarReprints.com